DOJ says Title VII doesn’t apply to sexual orientation discrimination

Sexual orientation flag snipThe U.S. Department of Justice (DOJ) has filed an amicus (friend-of-the-court) brief in a case in which an employee claims his employer violated Title VII of the Civil Rights Act of 1964 by discriminating against him based on his sexual orientation.

The DOJ’s brief asserts that Title VII’s prohibition of sex discrimination does not extend to discrimination based on sexual orientation. The DOJ’s position is in stark contrast to the position taken by the Equal Employment Opportunity Commission (EEOC), which says discrimination based on sexual orientation or transgender status constitutes sex discrimination in violation of Title VII.

In July 2015, the EEOC held that a complaint alleging sexual orientation discrimination in violation of Title VII was within the agency’s jurisdiction. The EEOC noted that Title VII prohibits employers from relying on sex-based considerations when taking employment actions and that there is an “inescapable link” between allegations of sexual orientation discrimination and sex discrimination. The agency concluded that claims of sexual orientation discrimination should be treated as complaints of sex discrimination under Title VII.

The DOJ filed its brief in Zarda v. Altitude Express, 855 F.3d 76 (2nd Cir., 2017), which is pending in the U.S. 2nd Circuit Court of Appeals and could overturn the court’s current precedent on the application of Title VII to sexual orientation discrimination. A three-judge panel of the court ruled that Title VII does not extend to sexual orientation discrimination claims. However, following the 7th Circuit’s decision that sexual orientation discrimination violates Title VII, the 2nd Circuit agreed to rehear the case with the full court.

Twenty-two states, the District of Columbia, and many counties and cities have laws or ordinances that prohibit employers from discriminating based on sexual orientation.